Friday, June 16, 2017

Supreme Court Doubles Down on Jordan

R. v. Cody, 2017 SCC 31:

Constitutional law — Charter of Rights — Right to be tried within a reasonable time — Pre‑Jordan delay of more than five years between charges and anticipated end of trial — Whether accused's right to be tried within reasonable time under s. 11 (b) of Canadian Charter of Rights and Freedoms infringed — Framework for determining s. 11 (b) infringement set out in Jordan applied.

C was charged with drugs and weapons offences on January 12, 2010. His trial was scheduled to conclude on January 30, 2015. Before the commencement of his trial, C brought an application under s. 11 (b) of the Charter , seeking a stay of proceedings due to the delay. Because the application pre‑dated the release of R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, the trial judge applied the former framework set out in R. v. Morin, [1992] 1 S.C.R. 771. He granted the application and stayed the proceedings. A majority of the Court of Appeal applied the Jordan framework and allowed the appeal, set aside the stay of proceedings and remitted the matter for trial.

Held: The appeal should be allowed and the stay of proceedings restored.

The delay in this case was unreasonable and therefore, C's right under s. 11 (b) of the Charter was infringed. The Court of Appeal erred in its application of Jordan. From the time C was charged until his five‑day trial was scheduled to begin, fully five years passed. The Crown, the defence and the system each contributed to that delay. Under the Jordan framework, every actor in the justice system has a responsibility to ensure that criminal proceedings are carried out in a manner that is consistent with an accused person's right to a trial within a reasonable time. This framework now governs the s. 11 (b) analysis and, like any of this Court's precedents, it must be followed and it cannot be lightly discarded or overruled. Properly applied, this framework provides sufficient flexibility and accounts for the transitional period of time that is required for the criminal justice system to adapt.

After the total delay from the charge to the actual or anticipated end of trial is calculated under the Jordan framework, delay attributable to the defence must be subtracted. Defence delay is divided into two components: delay waived by the defence and delay caused by defence conduct. The only deductible defence delay under the latter component is that which is solely or directly caused by the accused person and flows from defence action that is illegitimate insomuch as it is not taken to respond to the charges. Illegitimacy in this context does not necessarily amount to professional or ethical misconduct, but instead takes its meaning from the culture change demanded in Jordan. The determination of whether defence conduct is legitimate is highly discretionary, and appellate courts must show a correspondingly high level of deference thereto. Defence conduct encompasses both substance and procedure — the decision to take a step, as well as the manner in which it is conducted, may attract scrutiny. To determine whether defence action is legitimately taken to respond to the charges, the circumstances surrounding the action or conduct may therefore be considered. The overall number, strength, importance, proximity to the Jordan ceilings, compliance with any notice or filing requirements and timeliness of defence applications may be relevant considerations. Irrespective of its merit, a defence action may be deemed not legitimate if it is designed to delay or if it exhibits marked inefficiency or marked indifference toward delay.

Beyond a retrospective accounting of delay, a proactive approach is required from all participants in the justice system to prevent and minimize delay. Trial judges should suggest ways to improve efficiency, use their case management powers and not hesitate to summarily dismiss applications and requests the moment it becomes apparent they are frivolous.

After defence delay has been deducted, the net delay must be compared to the applicable presumptive ceiling set out in Jordan. If the net delay exceeds the ceiling, then the delay is presumptively unreasonable. To rebut this presumption, the Crown must establish the presence of exceptional circumstances, which fall into two categories: discrete events and particularly complex cases. Discrete events, like defence delay, result in quantitative deductions of particular periods of time. However, case complexity requires a qualitative assessment and cannot be used to deduct specific periods of delay. Complexity is an exceptional circumstance only where the case as a whole is particularly complex. The delay caused by a single isolated step that has features of complexity should not be deducted under this category.

Transitional considerations may be taken into account as a third form of exceptional circumstances where the case was already in the system when Jordan was decided. Like case complexity, the transitional exceptional circumstance assessment involves a qualitative exercise. The exceptionality of the "transitional exceptional circumstance" does not lie in the rarity of its application, but rather in its temporary justification of delay that exceeds the ceiling based on the parties' reasonable reliance on the law as it previously existed. The parties' general level of diligence, the seriousness of the offence and the absence of prejudice are all factors that should be taken into consideration, as appropriate in the circumstances.

In this case, the total delay was approximately 60.5 months, from which the delay waived by C should be deducted (13 months). Then, two periods of time should be deducted as defence delay: the delay resulting from C's first change of counsel (1 month) and the delay resulting from C's recusal application (2.5 months). After accounting for these deductions, the delay is 44 months, which exceeds the 30‑month ceiling set out in Jordan and therefore, is presumptively unreasonable.

With respect to exceptional circumstances, the following delays should be deducted as discrete events: the appointment of C's former counsel to the bench (4.5 months) and part of the delay flowing from the McNeil disclosure issue that arose (3 months). The net delay is therefore 36.5 months. Despite the voluminous disclosure, this does not qualify as a particularly complex case.

In light of the trial judge's findings of real and substantial actual prejudice and that C's conduct was not inconsistent with the desire for a timely trial, the Crown cannot show that the net delay was justified based on its reliance on the previous state of the law. To the contrary, the trial judge's findings under the Morin framework strengthen the case for a stay of proceedings. Where a balancing of factors under that framework would have weighed in favour of a stay, the Crown will rarely, if ever, be successful in justifying the delay as a transitional exceptional circumstance under the Jordan framework.